Plaintiff, injured when he fell off a roof while working
for third party defendants, moves for partial summary judgment.
Defendants oppose, claiming he was a recalcitrant worker for disobeying
instructions of his employer. They also claim he deliberately
orchestrated his slip and fall.

Plaintiff says he had carried roofing materials from the
roof of building 19 to the adjoining roof of building 18, when
felt roofing paper under his feet tore causing him to slip and
then slide down the roof, dislodge a kick board at the base of
the roof, bounce off a lower roof and hit the ground below.

There was scaffolding on building 19, but none on 18. The
only device on 18 was the 2 by 4 kick board apparently placed
to prevent one from sliding off the roof.

Defendants say plaintiff was working on building 19 where
he was protected by scaffolding and crawling boards, and that
he had no business going over to the roof on building 18. They
alleged he and other workers had been ordered off the roof because
it had started to rain, but, instead of obeying, plaintiff went
over to the adjoining roof on 18 where no one was engaged in work;
that plaintiff had no reason whatsoever to leave building 19 which
had protection to go over to building 18 which did not, because
work on 19 was not completed.

The work plan called for completing the roof of a building
and then moving the scaffolding to the next building to undertake
the roofing work there.

Defendants rely heavily on statements allegedly made by
plaintiff to one Merla Cole a few days before his fall that he
could fall the right way off the roof without being badly injured,
collect a large settlement and not have to work any more.

Defendants say: "Whether this was part of the plaintiff's
fall 'the right way' from the roof and whether this fall and the
plaintiff's actions, were all orchestrated to make it appear that
this was an accident, present some of the many questions of fact
for a jury to determine." Memo of Law by Third Party
Defendant.

Buildings 18 and 19 are joined, the roof peak of 19 is
at a higher elevation than 18, but they are aligned in the same

direction.

Plaintiff has demonstrated that defendants breached their

nondelegable duty imposed by the statute, and, that breach
was a proximate cause of his injuries. ADAMS V. CIMATO BROTHERS.,
INC. V BIG G ROOFING, 617 NYS2d 251, (A.D. 4th Dept) is controlling
here. (Defendants claimed plaintiff twice disobeyed instructions
to return to the peak of the roof and remain there until the scaffolding
was put in place).

Defendants acknowledge that building 18 did not have adequate
scaffolding. As those buildings are in effect one building with
split level roofs, the statute contemplates that workers be given
adequate protection by scaffolding.

If it was not for the recalcitrant worker and orchestrated

fall defenses interposed here, defendants would have to
concede, if they have not, that under the facts surrounding this
slip and fall, plaintiff would be entitled to summary judgment
for lack of a adequate scaffolding on building 18.

This was a witnessed fall. There was no scaffolding in
the area of the fall. The question here is whether plaintiff's
loose lip (assuming statements were made as alleged by Ms. Cole)
should excuse defendants' loose kick board and no scaffolding.

The answer is "no". Their responsibility cannot
be delegated. The breach was a proximate cause of plaintiff's
fall.

The plaintiff is entitled to partial summary judgment on
the issue of liability.

THIS IS THE DECISION AND ORDER OF THIS COURT. NO FURTHER
ORDER SHALL BE NECESSARY.